Zagorski v. State

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE FILED
December 7, 1998

Cecil W. Crowson
Appellate Court Clerk
EDMUND GEORGE ZAGORSKI, ) FOR PUBLICATION
)
Appellant, ) FILED: December 7, 1998
)
V. ) ROBERTSON CIRCUIT
)
STATE OF TENNESSEE, ) HON. JANE W. WHEATCRAFT,
) JUDGE
Appellee. )
) No. 01SO1-9711-CC-00240
)
) (Post Conviction)

For the Appellant: For the Appellee:

Samuel L. Felker & John Knox Walkup
Joseph F. Welborn Attorney General and Reporter
Nashville, Tennessee
Michael E. Moore
Solicitor General

Amy L. Tarkington
Assistant Attorney General
Nashville, Tennessee

OPINION

AFFIRMED BARKER, J.
 OPINION

We granted this post-conviction appeal to determine whether there is

ineffective assistance of counsel where, at the express instruction of a competent and

fully informed defendant, defense counsel does not investigate or present mitigating

evidence at the sentencing phase of a capital trial. For the reasons provided herein,

we hold that there is not.

BACKGROUND

The petitioner, Edmund Zagorski, was convicted in 1984 of the first degree

premeditated murders of John Dale Dotson and Jimmy Porter. The evidence at trial

was that petitioner lured the two men into a wooded area in Robertson County under

the pretense of a drug deal. Once there, petitioner shot both men and slit their

throats, taking a substantial sum of money they had brought to purchase marijuana.1

The sentencing phase of the trial was held immediately after the jury returned

its guilty verdicts. Neither the State nor the defense offered any additional proof. The

jury sentenced the petitioner to death based upon two aggravating circumstances: (1)

the murders were committed by the defendant while he was engaged in committing

robbery of the victims, and (2) the murders were especially heinous, atrocious, or cruel

in that they involved torture or depravity of mind. Tenn. Code Ann. §39-13-203(i)(7),

(5) (1982).

1
For a m ore com plete recitatio n of the fa cts, see this Cou rt’s opinion in p etitioner’s direc t appeal.
State v. Zagorski, 701 S.W .2d 808, 8 10-11 (T enn. 198 5), cert. denied 478 U.S. 1010, 106 S.Ct. 3309, 92
L.Ed.2d 722 (1986).

2
 Following his unsuccessful direct appeal to this Court, the petitioner filed a

post-conviction petition alleging, among other things, that he was denied his

constitutional right to the effective assistance of counsel at trial. Petitioner contends

that his two trial lawyers were ineffective in failing to investigate and to present

mitigating evidence during the sentencing portion of his trial. We affirm the dismissal

of his post-conviction petition.

The evidence introduced at the post-conviction hearing was undisputed.

Although the petitioner himself did not testify, he introduced the testimony of Jeffrey

Blum, a program specialist with the Davidson County Public Defender’s Office, and his

two former lawyers, Larry Wilks and James Walton.2 Sheriff Ted Emery and Detective

Ronnie Perry from the Robertson County Sheriff’s Department testified for the State.

Before trial, petitioner made it clear to his counsel that he wanted to focus

exclusively on avoiding a first degree murder conviction. He unequivocally informed

counsel that if convicted, he preferred death instead of a possible sentence of life in

prison. Counsel advised the petitioner about the importance of and the need to

investigate and use information about his family background; however, petitioner

prohibited his attorneys from having any contact with his family or delving into his past.

He further instructed counsel that no mitigating evidence was to be presented at the

sentencing phase of trial.

Despite petitioner’s explicit instructions, counsel took certain steps to

investigate his family background. Counsel initially sought funds to travel to the

petitioner’s home town in Michigan; however, they did not go because of his strict

instructions. Mr. Wilks instead contacted the petitioner’s mother by telephone. Mrs.

2
Mr. W alton is now a Circuit C ourt judg e in the Nin eteenth J udicial Distric t.

3
Zagorski spoke with a heavy Polish accent and was immature and very childlike,

apparently the result of a childhood head injury. While she referred to the petitioner

as “my boy” and was obviously concerned about his fate, she was of little assistance

and provided no information that could be pursued for mitigation.

Counsel also obtained the services of an independent psychiatrist, Dr. Ben

Bursten, who examined the petitioner and confirmed that he was both competent and

ineligible for an insanity defense. Dr. Bursten’s findings and proposed testimony were

not helpful to the defense and counsel chose not to call him to testify at trial.

On several occasions during the trial court proceedings, counsel advised

petitioner of his rights and the potential consequences of his decision to forego any

investigation or use of his family background and other mitigating evidence. The

petitioner was adamant in his chosen course of action and he expressed full

awareness of the ramifications of the death penalty.

Counsel testified that the petitioner’s instructions forced them to choose

between honoring his wishes and following their own professional judgment. For

guidance under those circumstances, counsel contacted the Board of Professional

Responsibility (BPR). The BPR issued an informal opinion3 advising counsel to fully

inform petitioner that he had a right to pursue a defense of his choice, but that his

chosen defense strategy conflicted with counsel’s ethical responsibilities. If petitioner

persisted, then counsel were advised that they should tell him that they would file a

motion to withdraw from their representation and insure that he was competent to

represent himself at all stages of the trial where the conflict was imminent.

3
The opinion was later adopted by the BPR as Formal Ethics Opinion 84-F-73.

4
 Counsel, however, never considered withdrawing from petitioner’s case

because of their professional obligation to him. They represented him during the

entire trial and followed his chosen defense strategy of preventing a first degree

murder conviction and foregoing mitigating evidence.

After the guilty verdicts of first degree murder, counsel again conferred with

petitioner about the need to pursue mitigating evidence. He directed counsel to do

nothing and say nothing at the sentencing hearing because he wanted the death

penalty. Once again, counsel explained to petitioner the possible consequences of his

decision. Although initially resistant, the petitioner finally allowed his lawyers to make

a closing argument on his behalf at the sentencing hearing. However, counsel did not

argue any mitigating factors in their closing because they believed the trial court had

limited their argument in that regard.

Mr. Wilks testified that he intended to argue that the victims were drug dealers

who were armed, intoxicated, and dangerous. However, he believed the only

available arguments for the defense were those supported by the evidence, leaving

them with little recourse since they did not present any proof at the sentencing phase.

The trial court refused to instruct the jury on three requested mitigating factors: the

victims’ participation in criminal activity, petitioner’s lack of prior violent convictions,

and petitioner’s youth. Essentially, counsels’ argument during the sentencing phase

was a plea for mercy.

Testimony at the evidentiary hearing revealed potential mitigating evidence with

respect to the petitioner’s family background that had been available at the time of

trial.4 The petitioner grew up impoverished in Tecumseh, Michigan where he lived in a

4
Evidence of petitioner’s background was provided by Jeffrey Blum. He contacted several
mem bers of th e petitioner’s family bef ore the e videntiary hea ring.

5
tenement apartment and then later in a small house. His mother was always critical of

him because she wanted a daughter. An aunt helped care for the petitioner during his

childhood because his mother was impaired by a brain injury. Between the ages of

eight and ten, the petitioner could not read or write and he developed a stutter.

Although he suffered from poor vision, he went without eye glasses for over a year.

Petitioner’s father had little or no involvement in his life. When petitioner was

about fourteen years old, a man in his neighborhood took him under his wing and

involved him in the Boy Scouts. Nevertheless, the petitioner began to use drugs and

alcohol at an early age. His grades in school were below average and he likely did not

finish high school. He had minor skirmishes with the law as a juvenile and federal

drug convictions as an adult; however, he had no convictions of violent crimes prior to

the commission of the murders.

Following the evidentiary hearing, the trial court held that the petitioner failed to

prove that his trial lawyers were ineffective. The trial court found that counsel

conducted the defense at the sentencing hearing based upon instructions from the

petitioner, who was competent to aid in his own defense and to have input in the trial

decisions.

The trial court’s decision was affirmed by the Court of Criminal Appeals. The

intermediate court determined that counsel were not ineffective for the alleged failure

to investigate mitigating evidence because petitioner had not shown any resulting

prejudice. As to the failure to introduce mitigating evidence, the intermediate court

concluded that counsel performed effectively in carrying out petitioner’s demands after

informing petitioner of the circumstances and the consequences of his decision.

6
 We affirm the judgments of the courts below and hold that when a competent

and fully informed defendant instructs counsel not to investigate or present mitigating

evidence at trial, counsel will not later be adjudged ineffective for following those

instructions.

EFFECTIVE ASSISTANCE OF COUNSEL

To prevail on a claim of ineffective counsel in this proceeding, petitioner must

prove by a preponderance of the evidence 5 that the advice given or services rendered

by his counsel fell below the range of competence demanded of attorneys in criminal

cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). He must also

demonstrate prejudice by showing a reasonable probability that but for counsels’ error,

the result of the proceeding would have been different. Strickland v. Washington, 466

U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Goad v. State, 938

S.W.2d 363, 369 (Tenn. 1996).

The petitioner contends that his trial attorneys were ineffective in failing to

investigate and present mitigating evidence despite his instructions to the contrary.

Generally, a defense attorney’s failure to investigate and prepare for a possible capital

sentencing hearing is below the range of competence demanded of criminal attorneys.

See California v. Brown, 479 U.S. 538, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987); Goad,

938 S.W.2d at 369.6 Although there is no requirement that counsel present mitigating

evidence during the sentencing phase of trial, 7 this Court has emphasized the

5
The p etition was f iled in 1989 and is go verned by the pre-1 995 Po st-Con viction Pro cedure Act.
See Tenn. Code Ann. §§40-30-101 - 124 (repealed 1995). There is no explanation in the record for the
lengthy delay between the filing of the petition and the evidentiary hearing held in late 1995.

6
Lawyers representing capital defendants have a duty to prepare for both the guilt phase and
senten cing pha se of a trial. Goad, 938 S.W .2d at 370 -71; State v. Melson, 772 S.W.2d 417, 421 (Tenn.
1989)

7
State v. Melson, 772 S.W .2d 417, 421 (Tenn. 1989 ).

7
importance of mitigating evidence in capital cases “because of the belief ... that

defendants who commit criminal acts that are attributable to a disadvantaged

background, or to emotional and mental problems may be less culpable than

defendants who have no such excuse.” Goad, 938 S.W.2d at 369 (quoting California

v. Brown, 479 U.S. 538, 544, 107 S.Ct. 837, 841, 93 L.Ed.2d 934 (1987)).

In this case, petitioner’s counsel recognized the importance of exploring and

presenting mitigating evidence. They yielded, however, to the petitioner’s demands

that no evidence be offered in mitigation upon his conviction of first degree murder.

The petitioner understood that he faced the death penalty, but he nevertheless

instructed his attorneys to refrain from any investigation into his family background

and to essentially forego any defense at the sentencing phase.

We distinguish petitioner’s case from those in which counsel has been

adjudged ineffective for making the decision not to investigate or present mitigating

evidence. See e.g. Austin v. Bell, 126 F.3d 843, 849 (6th Cir. 1997), cert. denied ___

U.S. ___, 118 S.Ct. 1526, 140 L.Ed.2d 677 (1998); Goad, 938 S.W.2d at 370. It is

undisputed that counsels’ inaction in this case was solely and alone the result of

petitioner’s instruction not to pursue any mitigation evidence.

Under these exceptional circumstances, the critical issue is whether a lawyer

should follow the lawful demands of his client when those demands may cause

detriment to the client’s case. This Court has adopted the Code of Professional

Responsibility to assist and guide lawyers in their relationships with clients and others.

See Tenn. Sup. Ct. R. 8. Generally, the client has exclusive authority to make

decisions about his or her case, which are binding upon the lawyer if made within the

framework of the law. Tenn. Sup. Ct. R. 8, EC 7-7. For example, in criminal cases, it

8
is the client who decides what plea to enter and whether an appeal should be taken

once he or she has been fully advised by counsel. Id.

Counsel’s role in a criminal case is to assist the defendant in making a defense

and to represent the defendant before the court. State v. Franklin, 714 S.W.2d 252,

262 (Tenn. 1986). The assistance of counsel insures, among other things, that the

defendant is fully advised of his or her rights, the available defense strategies, and the

consequences of pursuing one strategy over another. According to the Code of

Professional Responsibility, “a lawyer should exert the lawyer’s best efforts to insure

that decisions of the client are made only after the client has been informed of relevant

considerations.” Tenn. Sup. Ct. R. 8, EC 7-8.8 Counsel may even warn the client

about harsh consequences that might result from pursuing an ill-advised, but legally

permissible strategy. Id.

Ultimately, however, the right to a defense belongs to the defendant. Franklin,

714 S.W.2d at 262. Counsel must remember that decisions, including whether to

forego a legally available objective because of non-legal factors, are for the client and

not the lawyer. Tenn. Sup. Ct. R. 8, EC 7-8. As Justice William Brennan of the United

States Supreme Court has stated:

[t]he defendant, and not his lawyer or the State, will bear the personal
consequences of a conviction. It is the defendant, therefore, who must
be free personally to decide whether in his particular case counsel is to
his advantage. And although he may conduct his own defense
ultimately to his own detriment, his choice must be honored out of “that
respect for the individual which is the lifeblood of the law.” Illinois v.
Allen, 397 U.S. 337, 350-51, 90 S.Ct. 1057, 1064, 25 L.Ed.2d 353
(Brennan, J., concurring).

Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975)

(footnote omitted).

8
See also Tenn. Sup. Ct. R. 8, DR 7-101(A)(3), which states that “[a] lawyer shall explain a
matter to the extent reasonably necessary to permit the client to make informed decisions regarding the
representation.”

9
 When a competent defendant knowingly and voluntarily chooses a lawful

course of action or defense strategy, counsel is essentially bound by that decision. If

the defendant is prejudiced in some respect by his own decision, he should not later

be heard to complain about those consequences by challenging the conduct of his

counsel. See State v. Dunn, 453 S.W.2d 777, 779 (Tenn. 1970); Dukes v. State, 578

S.W.2d 659, 665 (Tenn. Crim. App. 1978).

Counsel, in this case, reasonably represented the petitioner despite his chosen

defense strategy. First, counsel vigorously defended the petitioner during the guilt

phase of the trial. Moreover, counsel spoke to petitioner’s mother and obtained the

services of Dr. Bursten, a forensic psychiatrist. Mr. Wilks testified that petitioner’s

mother provided little information which could be pursued further. Dr. Bursten

examined the petitioner and concluded that he was mentally competent and ineligible

for any form of insanity defense. Dr. Bursten told counsel that if he testified, he would

explain that the petitioner could be a “mean person.” Counsel made a strategic

decision not to present Dr. Bursten’s testimony at trial.

Furthermore, counsel properly advised the petitioner of the need for mitigating

evidence and the potentially devastating consequences of his decision to forego such

evidence. Counsel testified that they had no difficulty communicating with the

petitioner and they consulted him at every critical stage of the proceedings. Petitioner

was adamant and did not waiver in his decision after counsel fully advised him of his

rights and the risks involved.

Counsel had no reservations about petitioner’s competency to make decisions

and to understand the consequences of his chosen defense strategy. Before trial,

petitioner’s competency to stand trial and the feasibility of an insanity defense were

evaluated at Middle Tennessee Mental Health Institute (MTMHI). The evaluators

10
found the petitioner competent to assist in his own defense and ineligible for an

insanity defense. As stated, Dr. Bursten’s separate evaluation also affirmed the

petitioner’s competency.

The record before us clearly shows that the petitioner made an intelligent and

voluntary decision not to investigate or present mitigating evidence, and that he was

competent to make that decision. Counsel fulfilled their role as advocates for the

petitioner and were not ineffective in abiding by his informed decision to forego the

use of mitigating evidence. Because we hold that counsels’ performance did not fall

below an objective standard of competence, it is unnecessary for us to address the

issue of prejudice. Strickland, 466 U.S. at 697, 104 S.Ct. At 2069; Goad, 938 S.W.2d

at 370.

THE ETHICS OPINION

Finally, it is appropriate to address the ethical considerations raised in Formal

Ethics Opinion 84-F-73 of the Board of Professional Responsibility. As previously

mentioned, petitioner’s counsel sought advice from the BPR on how to represent the

petitioner given the unique circumstances in this case. The BPR recognized that

petitioner’s defense strategy was both moral and legal, but opined that it was

nevertheless in conflict with counsels’ duties as defense lawyers. The BPR

recommended to counsel the following steps to address the conflict with the petitioner:

Counsel should fully inform the accused of his legal right to
conduct a defense of his choice as guaranteed by the Constitution. The
accused should be fully advised by counsel that his rights and interests
are in conflict with counsel’s moral beliefs and ethical responsibilities. In
[sic] event the accused maintains his insistence on no actions or
arguments on his behalf against the death penalty being imposed then
counsel should advise the accused that a motion to withdraw from those
portions of the trial will be filed with the court. The consequences of this
action should be fully explained to the accused. The court should be
fully informed of the conflicts between counsel and the accused.

11
 Counsel should seek adjudication that the accused is competent to
represent himself during ... any ... portion of the trial where the conflict is
imminent. Counsel should move the court to withdraw from
representation during the portion of the trial where the conflict is
manifested. In the event the court fails to grant such motions, the
attorney should seek an immediate review by the appellate court.

See Board of Professional Responsibility, Formal Op. 84-F-73 (1984).

Counsel followed the BPR’s opinion in part by informing the petitioner of his

rights and how his chosen defense strategy conflicted with his legal interests.

Counsel, however, chose to continue their representation of the petitioner and never

informed the trial court of their conflict.

Under the circumstances in this case, counsel had no obligation to seek to

terminate their representation of the petitioner. Withdrawal of counsel is governed by

Disciplinary Rule 2-110 of the Code of Professional Responsibility, and in indigent

criminal cases, by Tennessee Code Annotated section 40-14-205. Our review of

those provisions reveals that no grounds existed for mandatory withdrawal. The

petitioner never expressed a desire to discharge his appointed counsel and there was

no evidence that counsels’ services were meant to cause harm to another person or

that the representation would result in the violation of a Disciplinary Rule. See Tenn.

Sup. Ct. R. 8, DR 2-110(B).

Moreover, even if counsel had sought to withdraw from petitioner’s case, such

action would have required permission from the trial court. Tenn. Code Ann. § 40-14-

205 (1984); Tenn. Sup. Ct. R. 8, DR 2-110(A)(1). Tennessee Code Annotated section

40-14-205 provides that a court-appointed lawyer may withdraw from representation

only upon the trial court’s finding of good cause. Although the circumstances in this

case may have risen to the level of good cause, we will not speculate as to whether

the trial court would have granted a withdrawal in the middle of this capital trial.

12
 Counsel determined that the petitioner’s legal interests would be served best if

they continued their representation throughout the penalty phase of the trial. We are

persuaded that counsel acted both reasonably and competently in representing the

petitioner instead of seeking to withdraw from his case.9 However, we are concerned

that at no time did counsel inform the trial judge on the record about the

circumstances or their decision to carry out the petitioner’s defense strategy.

In prospective cases, when a defendant, against his counsel’s advise, refuses

to permit the investigation and presentation of mitigating evidence, counsel must

inform the trial court of these circumstances on the record, outside the presence of the

jury. The trial court must then take the following steps to protect the defendant’s

interests and to preserve a complete record:

1. Inform the defendant of his right to present mitigating evidence and
make a determination on the record whether the defendant understands
this right and the importance of presenting mitigating evidence in both
the guilt phase and sentencing phase of trial;

2. Inquire of both the defendant and counsel whether they have
discussed the importance of mitigating evidence, the risks of foregoing
the use of such evidence, and the possibility that such evidence could be
used to offset aggravating circumstances; and

3. After being assured the defendant understands the importance of
mitigation, inquire of the defendant whether he or she desires to forego
the presentation of mitigating evidence.10

This procedure will insure that the accused has intelligently and voluntarily

made a decision to forego mitigating evidence. Trial judges, however, shall not inquire

of counsel as to the content of any known mitigating evidence. To hold otherwise

9
Counsels’ decision to remain on petitioner’s case was in accordance with EC 7-5, which
permits counsel to continue representation “even though the client has elected to pursue a course of
conduct contrary to the advice of the lawyer,” provided the lawyer does not assist in illegal conduct or
assert a frivolous legal position. Tenn. Sup. Ct. R. 8, EC 7-5.

10
Other jurisdictions have adopted similar procedures. See Koon v. Dugger, 619 So.2d 246,
250 (Fla . 1993); W allace v. Sta te, 893 P.2d 504, 512 -13 (O kla. Crim . App. 199 5), cert. denied 516 U.S.
888, 116 S.Ct. 232 , 133 L.Ed .2d 160 ( 1995).

13
would potentially force counsel to act against the client’s wishes and would risk the

disclosure of privileged or confidential information.

CONCLUSION

We recognize the professional, personal, and moral conflicts that lawyers

encounter when representing a defendant who chooses to forego the use of

mitigating evidence. Nevertheless, we must preserve a competent defendant’s right to

make the ultimate decisions in his or her case once having been fully informed of the

rights and the potential consequences involved.

Accordingly, when a defendant instructs counsel not to investigate or present

mitigating evidence, counsel must follow the procedure outlined in this case to insure

on the record that the defendant is competent and fully aware of his rights and the

possible consequences of that decision. Thereafter, counsel will not be adjudged

ineffective for abiding by the defendant’s lawful decision.

The judgment of the Court of Criminal Appeals is affirmed. Unless stayed by

this Court or other appropriate authority, the sentence of death shall be carried out as

provided by law on the 15th day of April, 1999.

___________________________
William M. Barker, Justice

Concur:

Anderson, C.J.,
Drowota, Birch, Holder, JJ.

14